Why were ICC officials sanctioned in the first place — and what was the response from the international community? And what does Biden’s reversal mean for the U.S.-ICC relationship?
ICC opened investigations in Afghanistan and the Palestinian territories
The ICC’s claims of jurisdiction have been a source of frustration for multiple U.S. presidents. When in office, George W. Bush and Barack Obama supported the court’s work in some areas, when it aligned with U.S. interests, and pushed back in others. This selective engagement meant they could support the court’s investigations in countries like Sudan and Libya while rejecting the court’s jurisdiction over countries that are not ICC members — countries like the United States, or U.S. allies like Israel.
But the ICC prosecutor has consistently affirmed the court’s jurisdiction over U.S. personnel in Afghanistan and over Israeli personnel in the occupied Palestinian territories, namely the Gaza Strip and the West Bank (including East Jerusalem).
Opened in 2006 during Bush’s second term, the Afghanistan probe concerns alleged war crimes and crimes against humanity, including by U.S. military and intelligence personnel. The preliminary ICC findings indicate the prosecutor is particularly interested in allegations of torture in CIA detention sites.
The Palestinian probe was opened during Obama’s second term, in 2015. The investigation was requested by the Palestinian government shortly after it became an ICC member. The investigation covers suspected illegal conduct of Palestinian and Israeli forces — from Hamas and Palestinian forces’ use of rockets to Israel’s settlements in Palestinian territory.
Trump administration retaliated against Bensouda and Mochochoko
In his September 2018 U.N. General Assembly address, then-president Donald Trump said “the ICC has no jurisdiction, no legitimacy,” a statement that seemed to signal an end to U.S. selective engagement with the court. In March 2019, Secretary of State Mike Pompeo withdrew U.S. visas for ICC officials, including Bensouda. In his announcement, Pompeo threatened the ICC with “additional steps, including economic sanctions,” if the court did not end its investigation into U.S. personnel in Afghanistan.
A number of commentators have speculated that the U.S. sanctions were racist, pointing to Bensouda and Mochochoko, both African, among senior ICC personnel. There were no U.S. sanctions against the deputy prosecutor, James Stewart of Canada, nor the director of investigations, Michel De Smedt of Belgium — both of them more senior than Mochochoko.
Does the ICC have jurisdiction?
According to the United States and Israel, the ICC can’t investigate citizens of nonmember countries. However, under the Rome Statute of the International Criminal Court, the court has jurisdiction over all acts committed on the territory of a member country — including acts by citizens of nonmembers.
Sanctions generated international backlash
Trump’s sanctions were severe, freezing Bensouda and Mochochoko’s U.S. assets and restricting travel for ICC personnel involved in the Afghanistan and the Palestinian probes — and their family members. This went beyond Trump’s sanctions order regarding global terrorism suspects, which left family members untouched. The ICC sanctions were also broad, potentially covering human rights advocacy groups that collaborate with the court.
Unsurprisingly, the sanctions sparked significant international backlash. In June, 67 countries issued a statement reaffirming their support for the ICC. In November, 74 countries — including U.S. allies like the United Kingdom, Germany and France — made a statement at the United Nations General Assembly reiterating their support for the court and condemning the sanctions.
Human rights organizations also weighed in, calling the sanctions a “punitive measure” and urging the Trump administration to revoke them. Other organizations pressured Biden to revoke the sanctions, calling them an “unprecedented attack” on the rule of law. The Open Society Justice Initiative even sued the U.S. government, arguing in its filing that the sanctions violate freedom of speech and restricted its ability to work with the ICC. James Goldston, the organization’s executive director, said Friday that the sanctions had been “a betrayal of America’s historic commitment to international justice.”
Biden administration has concerns about the ICC but is willing to engage
Secretary of State Antony Blinken made clear in Friday’s announcement that the United States maintains its long-standing objection to ICC efforts to investigate nonmembers. But Blinken also said the administration’s “concerns about these cases would be better addressed through engagement with all stakeholders in the ICC process.”
So Biden appears to be returning to Bush and Obama’s playbook: Criticize in some areas and cooperate in others. For example, Obama administration officials participated in the 2010 ICC Review Conference, where countries came together to clarify, among other items, the court’s mandate in cases of interstate conflict.
We may see the Biden administration take the same approach, supporting the ICC in some areas, like its investigation in Mali, while opposing the court’s work in places like the Palestinian territories.
British attorney Karim Khan will take over for Bensouda when her term as chief prosecutor ends on June 15. How Khan proceeds with the investigations in Afghanistan and the Palestinian territories probably will determine how far Biden’s cooperation goes. For the ICC and the Biden administration, an added consideration could be the views of the U.S. public, which has been broadly supportive of the court’s mission to end impunity for serious international crimes.